Investigative Report: An insider look at an IDF probe

An IDF investigation into death of Ibrahim Sarhan and the IDF's post-Cast Lead policy change.

When an IDF unit raided the Al-Far’ah Refugee Camp in July 2011 killing Ibrahim
Sarhan, a man who turned out to be – not the terrorist being sought but – a
noncombatant, there was an outcry for investigations by human rights groups and
portions of the media.

But that distinction in the continuously unstable
Israeli- Palestinian situation would not make the event unique.

What was
unique was what happened next.

Sarhan’s killing was the first case in
which the military police immediately criminally investigated the soldier who
killed Sarhan as a result of a petition to the High Court of Justice and as part
of a new post-Operation Cast Lead IDF policy to crack down on such
incidents.

The Magistrate Advocate General’s policy from 2000- 2011,
following the onset of the second intifada, was not to criminally investigate
(as opposed to operational investigations into mere misconduct) such deaths
unless sufficient reasons were later brought to the legal division’s attention
in a specific case.

This was because the second intifada turned the West
Bank into an area of regular armed conflict.

A recent report by the human
rights group B’Tselem complimented the IDF on following through with its new
policy, but slammed the investigation itself and its result: the closing of the
case without filing charges, as problematic.

The Jerusalem Post obtained
the full case file, including interrogations of the soldier who shot Sarhan and
all the way up to an interrogation of the operation’s commanding officer, a
lieutenant colonel, which tells a tragic and complex story.

The soldier
who shot and killed Sarhan and the IDF decision not to prosecute seem to have a
strong argument.

The operation was not a routine patrol, but a late-night
operation to arrest various terrorists.

Sarhan was not a stoic bystander,
but fled, which changed his legal status – according to the soldier who shot
him.

According to the soldier, he encountered Sarhan very close to an
established closed military area and called for the Palestinian to halt and
raise his hands.

Sarhan briefly complied, but then turned and bolted
away.

The soldier testified that he called for him to halt in Arabic,
fired a warning shot in the air and then aimed and shot Sarhan in a non-lethal
part of the body, his leg.

The soldier, who was not a rookie but a lower
level commander with some experience in such operations, and his overall
commander, both testified that he followed the rules of engagement
flawlessly.

The fact that Sarhan unexpectedly died from the leg wound,
which hit an artery and caused him to bleed to death was, in their eyes, a
tragedy, but not a rules violation, let alone a crime.

But B’Tselem, and
the soldier’s IDF interrogator, to different degrees, said
otherwise.

They noted that sections 8 and 10 of the rules of engagement
applicable in the West Bank require a danger to human life, which Sarhan could
not possibly have posed being that he was fleeing.

The soldier responded
that Sarhan’s conduct in fleeing the way he did, added to what the soldier
thought was a resemblance to one of the terrorists being pursued, were in and of
themselves enough to qualify him as being under suspicion of being
dangerous.

At a key moment in the interrogation, when asked if he had any
doubt about what he did, now knowing that Sarhan was totally innocent, the
soldier doubled-down and said that from his experience in the field, innocent
Palestinians stay in place with their hands up or at least stop with a warning
shot out of fear, and only dangerous Palestinians are ready to keep running
after a warning shot.

The difficulty with the soldier’s justification and
his commander’s approval is that the soldier admittedly did not see a picture of
the terrorist being sought and was only given a general description.

So
the soldier’s defense would essentially come down to that Sarhan ran, which
despite the soldier’s experience and interpretation of the rules, is not, on its
face, a basis to open fire under the rules of engagement presented by the
military interrogator.

Really the soldier’s best defense is unlikely to
be that he acted correctly, but rather that he made a good-faith mistake in
interpreting the rules, which, at trial, is often grounds to acquit under the
beyond reasonable doubt standard.

In that case he could face a charge of
negligent use of a weapon.

The soldier could not have been convicted of
murder and probably not even manslaughter, as at most his clear intent was to
wound Sarhan and slow him down.

But B’Tselem’s argument that at least an
indictment could have been filed to let a court decide the issue of beyond a
reasonable doubt and that the killing of a noncombatant like Sarhan demands more
than a mere disciplinary measure is difficult to ignore.

In light of this
case – and on the day when human rights group Yesh Din produced a report that of
5,000 Palestinians killed by the IDF between 2000 and 2013, that there have been
only 179 criminal investigations, with only 16 indictments and only seven
convictions – whether the IDF Military Advocate General’s reforms to its
investigations post-Operation Cast Lead are sufficiently addressing the issue of
noncombatant deaths is still a burning question.

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